Hold the judging on anti-tax I-1366 for after election day

A King County judge will be asked Friday to kill a certified state initiative in defiance of two Washington Supreme Court rulings. We trust the judge will read those unanimous opinions and reach the only tenable conclusion: Initiative 1366 belongs to the voters.

We say this despite the fact that I-1366 is an uncommonly bad measure. Concocted in Tim Eyman’s initiative factory, it is designed to upend majority rule in the Legislature by requiring a two-thirds supermajority approval for any tax increases.

Because the Washington Constitution currently requires only simple majorities in the House and Senate for new taxes, I-1366 has to be sneaky. Only the Legislature can propose constitutional amendments for public vote.

The initiative would attempt to coerce lawmakers into proposing a constitutional supermajority requirement. It would do so by threatening to automatically lower the state sales tax by a penny, which would strip more than $1 billion a year from state revenues.

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There might be some rationale for this if the Legislature were on a tax-and-spend binge. It’s not. Boosted by the economy and constrained by a Republican-dominated Senate, lawmakers have been scrounging successfully for money to comply with a court order mandating more investment in public education. They’ve done an impressive job earmarking billions of new dollars for the schools – and done it without any significant new taxes.

Sucking billions out of the budget, as the sales tax cut would do, would make it impossible to amply fund basic education. The alternative, a possible amendment requiring supermajorities for taxes, would give a minority of lawmakers twice the voting power of the majority. A handful of legislators could kill even the most sensible effort to end tax breaks for industries.

I-1366 is bad news. But voters, not a court in Seattle, have the right to decide its fate.

Washington history is rife with awful initiatives. Some pass – and are subsequently dismembered by the state supreme court or the Legislature. Last year’s abomination was Initiative 1351, which promised an army of new schoolteachers of Washington’s schools but offered no way to cover the immense cost. Large majorities in the House and Senate voted to suspend it.

The high court knocks down other bad ones, including some of Eyman’s past brainchildren.

Messy as the initiative process is, it is a fundamental right under the Washington Constitution. You can defeat or strike down an initiative after it passes; what you can’t do is kill one before it reaches the voters. The state supreme court emphasized that in a 2005 decision. It re-emphasized it in 2007 with another unanimous decision.

In the latter case, the court wrote, “The right of initiative is nearly as old as our constitution itself, deeply ingrained in our state’s history, and widely revered as a powerful check and balance on the other branches of government … Given the pre-eminence of the initiative right, pre-election challenges to the substantive validity of initiatives are particularly disallowed.”

The justices expressed extreme reluctance to jump into the fray before the election and offer advisory opinions on initiatives. That would be roughly equivalent to traipsing over to the Legislature while it’s in session and decreeing that a bill shouldn’t come to the floor for a vote. The high court understood its constitutional limits. The King County Superior Court should understand its own.